VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1237/2023
	
CATCHWORDS	
Application for costs; Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); Application for costs refused; Application for reimbursement of fees; Section 115B of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); application for reimbursement of fees granted.     	

Applicant 	Yarra Ranges Shire Council	
First Respondent	John M Slawinski (as Executor of the Estate of Albert Michael Slawinski) 	
Second Respondent	John Peter Slawinski 	
Third Respondent	Paul Albert Slawinski	
Fourth Respondent	Emily Catharine Findley	
Fifth Respondent	Edmund Michael Slawinski	
SUBJECT LAND	81-83 Don Road
HEALESVILLE  VIC  3777	
HEARING TYPE	Costs – on the papers	
DATE OF HEARING	22 August 2024	
DATE OF ORDER	12 February 2025	
CITATION	Yarra Ranges SC v Slawinski (Costs) [2025] VCAT 140   	
Order
Costs
1	The applicant’s application that the First and Second Respondent pay the applicant’s costs is refused.
Reimbursement of fees
2	By 24 March 2025, the First and Second Respondent, jointly and severally, must reimburse the applicant:
(a)	the whole of the application fee paid by the applicant, being $1 335.60; and 
(b)	the whole of the hearing fee paid by the applicant, being $556.50.

S P Djohan
Senior Member	

Reasons
background
1	On 6 May 2024, the Tribunal made an enforcement order pursuant to s 114 of the Planning and Environment Act 1987 (Vic) (‘PE Act’) in this proceeding (‘May 2024 order’). The reasons for that order and the terms of the enforcement order are set out in the May 2024 order.
2	The applicant has made an application:
a	for costs of the proceeding against the First and Second Respondents; and
b	reimbursement of the application fee from the First and Second Respondents.
3	The Second Respondent opposes both the application for costs and reimbursement of the application fee from the Second Respondent.
4	No submissions in response to the applicant’s application for costs and reimbursement of the application fee have been received from the First Respondent.
5	On or about 18 November 2024, the First Respondent emailed the Tribunal seeking to ‘reschedule the hearing I missed last year’ and informing the Tribunal that the First Respondent will send ‘a formal letter soon’. That email was not copied to any other party to this proceeding.
6	On 20 November 2024, the Tribunal wrote to the First Respondent (and copied the other parties to the proceeding) acknowledging his email of 18 November 2024 and noting that ‘a formal letter’ would be send soon. No formal letter or application to reopen the May 2024 order has been received by the Tribunal.
Statutory framework
Costs
7	Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) confers power on the Tribunal to aware costs against a party. 
8	Section 109(1) of the VCAT Act sets out the clear starting position regarding costs; each party is to bear their own costs in a proceeding.
9	An order for costs against a party may be made in a proceeding only if the Tribunal is satisfied that it is fair to do so, having regard to the factors set out in s 109(3) of the VCAT Act which provides:
(3)	The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to – 
(a)	whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as – 
(i)	failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii)	failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii)	asking for an adjournment as a result of (i) or (ii);
(iv)	causing an adjournment;
(v)	attempting to deceive another party or the Tribunal;
(vi)	vexatiously conducting the proceeding;
(b)	whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)	the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d)	the nature and complexity of the proceeding;
(e)	any other matter the Tribunal considers relevant.
Reimbursement of fees
10	Section 115B(1)(a) of the VCAT Act provides:
(1)	At any time, the Tribunal may make any of the following orders-
(c)	an order that a party to a proceeding reimburse another party the whole or any part of any fee paid by that other party in the proceeding, within a specified time;
3	Section 115C(2) of the VCAT Act, that applies to a proceeding under s 114 of the PE Act, provides:
(2)	Subject to subsection (3), a party who has substantially succeeded against another party in a proceeding to which this section applies is entitled to an order under section 115B that the other party reimburse the successful party the whole of any fees paid by the successful party in the proceeding. 
4	Section 115C(3) of the VCAT Act provides:
(3)	Subsection (2) does not apply if the Tribunal orders otherwise, having regard to – 
(a)	The nature of, and issues involved in, the proceeding; and
(b)	The conduct of the parties (whether occurring before or during the proceeding), including whether the successful party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse.
Submissions
Applicant
5	The applicant submitted that the Tribunal should exercise its discretion under s 109(2) of the VCAT Act to order costs against the First and Second Respondent because in the circumstances such an order would be fair. The applicant seeks an order for costs fixed at 80% of the professional fees incurred by the applicant.
6	The matters that the applicant submitted support a finding that it is fair int the circumstance to make the requested costs order having regard to s 109(3) of the VCAT Act are:
(a)	Despite the First Respondent not appearing and the Second Respondent not objecting to the enforcement application, the evidence presented on behalf of the applicant demonstrated the disregard by both respondents of the requirements of the planning scheme. No evidence was presented by either respondent that they were not able to bring the use of the land into compliance since the contravention of the planning scheme was first identified.
(b)	The enforcement application had strong merit.
(c)	The enforcement application involved several issues, some of which may be considered to be complex including consideration of the zoning and relevant overlays affecting the subject land and the joinder of multiple respondents.
(d)	The enforcement application arose as a result of the applicant fulfilling its statutory role to enforce the planning scheme in circumstances where the applicant, as a responsible authority, has been investigating the contravention of the planning scheme since 2022.
(e)	The inaction of the respondents since notification of the breach of the planning scheme and the failure to comply with requests to bring the use of the subject land into compliance with the planning scheme.
(f)	The Second Respondent’s lack of objection did not alleviate the amount of work needed to be done to obtain the enforcement order.
7	The applicant submitted that the Tribunal has been inclined to make costs orders in enforcement proceedings and relied on previous decisions of the Tribunal that it submitted demonstrated that such a practice was consistent with the notion of fairness.
Second respondent
8	The Second Respondent submitted that it would not be fair to award costs against the Second Respondent because when all the following matters are considered:
(a)	The Second Respondent’s conduct in the proceeding did not unnecessarily disadvantage the application or cause delay in the hearing of the enforcement application. 
(b)	The matter was very simple.
(c)	The Second Respondent made a good faith effort to clear the goods from the land prior to the proceeding by attempting to reach the First Respondent.
(d)	There were factors beyond the Second Respondent’s control that prevented him from complying with the applicant’s demand including the fact that he did not own the goods in question, held only a one-third interest in the subject land and had been in ill-health from a stroke.
Determination
Costs
9	The application for costs is refused for the reasons that follow.
10	Section 109(1) creates a presumption that each party bears their own costs.
11	Section 109(3) confers on the Tribunal the power to award costs, displacing the presumption in s 109(1) only when the Tribunal is satisfied after considering the matters set out in s 109(3)(a)-(e) that it is fair to do so.
12	After considering the applicant’s claim made s 109(3)(a), (c), (d) and (e) I am not satisfied that it is fair to award costs against either the First or Second Respondent.
13	I will deal with each of the applicant’s claims in turn.
Section 109(3)(a)
14	The applicant’s claim under this head relies on conduct of the respondents prior to commencement of the enforcement proceeding. This is not the conduct of a party that s 109(3)(a) is directed towards.
15	First, the relevant conduct is the conduct of a party in the proceeding; this is made clear by the opening words of s 109(3)(a) ‘whether a party has conducted the proceeding’. Conduct of a party prior to the commencement of a proceeding is not conduct of a party in the proceeding.
16	Secondly, s 109(3)(a) requires that the conduct in question must unnecessarily disadvantage the party seeking costs. The applicant’s submission does not allege that any conduct in the proceeding of either the First or Second Respondent, that is since the lodgement of the enforcement application, has unnecessarily disadvantaged the applicant.
17	The failure of the First Respondent to appear at the final hearing of the enforcement application did not unnecessarily disadvantage the applicant as the hearing proceeded as scheduled.
18	Having regard to the above reasons, I refuse to make an award of costs under s 109(3)(a) of the VCAT Act.
Section 109(3)(c)
19	The applicant’s claim is based on the merits of its enforcement application.
20	As fairly conceded by the Second Respondent, the success of the applicant in the enforcement proceeding is a factor that weighs in favour of an award of costs against the respondents. Success alone does not however always support an award for costs under s 109 otherwise the presumption in s 109(1) will always be displaced by upon a final determination of the merits of an application. On the facts of this matter, there was no opposition to the making of the enforcement order, so it is not appropriate to consider the relative strengths of any competing claims in the proceeding as there were no competing claims as between the parties.
21	Having regard to the above reasons, I refuse to make an award of costs under s 109(3)(c) of the VCAT Act.
Section 109(3)(d)
22	The applicant submitted that the enforcement application involved several issues that may be considered as complex. 
23	One issue was consideration of the breach of the planning scheme in light of the subject land’s inclusion in the Low Density Residential Zone, Bushfire Management Overlay and Significant Landscape Overlay. The inclusion of the subject land in a particular zone or being affected by particular overlays forms the some of the foundational facts to a finding that an alleged activity amounts to a breach of a planning scheme. These matters were straightforwardly set out in paragraphs 6 – 11 of the Tribunal’s decision in Yarra Ranges SC v Slawinski [2024] VCAT 418 and I find that there was nothing complex about those matters with respect to the alleged activity.
24	The other issue relied upon by the applicant is the joinder of multiple respondents as beneficiaries of the estate of Albert Slawinski and the applicant’s notice to all of these respondents.
25	As the applicant is aware, the joinder of the beneficiaries of the estate of Albert Slawinski was ordered by the Tribunal on its own motion and the applicant was required to provide notice of the enforcement application by order of the Tribunal. I do not accept that the joinder of the beneficiaries of the estate of Albert Slawinski increased the complexity of a relevantly straightforward enforcement application given the lack of opposition by all respondents.
26	Although the applicant’s claim under s109(3)(d) refers only to the alleged complexity of the proceeding, s 109(3)(d) requires consideration of the nature and complexity of the proceeding.
27	Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 2000 is often quoted when identifying some of the factors which make it more likely that the nature and complexity of the proceeding will make it fair to make an order for costs. One of these factors is whether the proceeding is in the Tribunal’s original jurisdiction or review jurisdiction. 
28	 I accept that the applicant commenced the proceeding in furtherance of its duty as a responsible authority to enforce the planning scheme and therefore this action was done in the public interest, I accept that there are previous decisions of the Tribunal where the Tribunal has awarded costs against unsuccessful respondents in enforcement proceedings, however I do not accept that the presumption under s 109(1) is displaced by the mere bringing of an enforcement proceeding by a responsible authority or the discretion conferred on the Tribunal is fettered by the fact that an application under s 114 of the PE Act is one brought in the original jurisdiction of the Tribunal.
29	Although I am satisfied that the proceeding was one brought by the applicant in furtherance of its duty as a responsible authority to enforce the planning scheme, I do not accept that the issues in the proceedings requiring consideration were complex or that there was any other complexity to the proceeding of a kind that would warrant an award of costs.
30	Having regard to the above reasons, I refuse to make an award of costs under s 109(3)(d) of the VCAT Act.
Section 109(3)(e)
31	I do not accept the applicant’s submission that there are other factors that warrant an award of costs against the respondents.
32	In my consideration of the nature the proceeding I acknowledge that the enforcement application was brought in furtherance of its duty to enforce the planning scheme. I am not satisfied however that the existence of that duty or the action taken by the applicant in commencing this proceeding, is sufficient to award costs against the respondents in light of my reasons for not awarding costs under s 109(3)(a), (c) and (d).
33	I refuse therefore to make an award of costs under s 109(3)(e).
Conclusion on costs
34	After considering the matters relied upon by the applicant under s 109(3)(a), (c), (d) and (e), I will not exercise my discretion to award costs against the First or Second Respondent because in light of my reasons above it would not be fair to do so.
Reimbursement of fees
35	The applicant seeks reimbursement of the filing fee for the enforcement application and the hearing fee for the final hearing. The applicant relies on s 115C(2) in support of this claim.
36	The Second Respondent submitted that for the reasons set out in its written submission in response to the applicant’s claim for costs that the presumption contained in s 115C(2) should be displaced if the nature and issues in the proceeding and the conduct of the parties so warrants.
37	I accept that s 115C(3) supports that the presumption in s 115C(2) can be displaced if after having regard to the matters set out in s 115C(3)(a) and (b), the Tribunal declines to make an order for reimbursement of fees.
38	 I do not accept that a finding that an award of costs should not be awarded under s 109(3)(a) or (c) leads to a displacement of the presumption in s 115C(2).
39	The nature of the proceeding as an application brought under s 114 of the PE Act by a responsible authority in furtherance of its duty to enforce the planning scheme supports not displaces the presumption in s 115C(2). My finding that the proceeding was not complex but was relatively straightforward also does not displace the presumption. All the issues in the proceeding were properly raised by the applicant in furtherance of the enforcement application. I am not satisfied that the nature of, and the issues in the proceeding disentitles the applicant to the reimbursement of fees under s115C(2) of the VCAT Act.
40	Further, my finding that the conduct of the First and Second Respondent does not warrant an award of costs against either party, does not displace the presumption in s 115C(2). The considerations under s 115C(3)(b) are broader than those under s 109(3)(a) and are directed specifically to whether the presumption under s 115C(2) should be displaced. 
41	On that facts of this matter, I find that there was no disentitling conduct on the part of the applicant to support displacement of the presumption. I also find that the failure of the First and Second Respondents as joint owners of the subject land to respond to the applicant’s requests to bring the land into compliance with the planning scheme led to the commencement of this proceeding by the applicant in order to obtain an enforcement order requiring the First and Second Respondent to do so. I am satisfied that having regard to the conduct of the First and Second Respondent prior to the commencement of the proceeding, that the presumption contained in s 115C(2) should not be displaced.
42	Accordingly, the application for reimbursement of fees under s115B is granted.

S P Djohan
Senior Member